Citation NR: 9604106
Decision Date: 02/22/96 Archive Date: 03/07/96
DOCKET NO. 92-11 211 ) DATE
)
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service connection for residuals of a
thoracic spine injury.
2. Whether new and material evidence has been submitted to
reopen the claims for service connection for bilateral
hearing loss and tinnitus.
3. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD) in excess of 30 percent from the date
of receipt of claim and a rating in excess of the current 50
percent rating.
4. Entitlement to an increased rating for degenerative disc
disease of the cervical spine with bilateral neuropathy of
the upper extremities, currently evaluated as 20 percent
disabling.
5. Entitlement to an increased rating for duodenal ulcer
disease, in excess of 10 percent from the date of receipt of
claim and a rating in excess of the current 20 percent.
6. Entitlement to an increased rating for seborrhea
dermatitis, currently evaluated as 10 percent disabling.
7. Entitlement to an increased (compensable) rating for
residuals of right shoulder dislocation.
8. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARINGS ON APPEAL
Appellant, appellant’s spouse and S. Bruce Webster
ATTORNEY FOR THE BOARD
R. M. Yonemoto, Counsel
INTRODUCTION
The veteran had active service from October 1966 to October
1969 and from May 1981 to May 1985.
In a November 1991 rating decision, the RO, in part
effectuating a Hearing Officer’s decision, granted service
connection for PTSD and assigned a 30 percent rating and
assigned a 10 percent rating for duodenal ulcer, effective
May 23, 1989, the date of receipt of claim. The veteran then
appealed the 30 percent rating for PTSD and the 10 percent
rating for duodenal ulcer. After additional development, the
RO in an April 1995 rating decision, increased the rating for
PTSD to 50 percent, effective from November 13, 1993, and
increased the rating for duodenal ulcer to 20 percent
effective from December 30, 1994. The veteran then continued
the appeal of these issues. For clarity, the different
ratings are reflected in the framing of the issues as listed
above.
As for PTSD, since two different ratings have been appealed,
the Board will consider a rating in excess of 30 percent from
the date of receipt of claim and a rating in excess of the
current 50 percent rating.
The issues of service connection for residuals of a thoracic
spine injury and increased ratings for duodenal ulcer disease
and degenerative disc disease of the cervical spine with
bilateral neuropathy of the upper extremities and a total
disability rating based on individual unemployability are
addressed in the remand section of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the onset of his defective hearing
and tinnitus was in service. It is argued that he was
exposed to acoustic trauma during service, and that that
trauma led to the development of his current defective
hearing and tinnitus. Specifically, it is asserted that he
was exposed to significant periods of artillery fire,
automatic weapon fire, mortar fire and naval gunfire, and
helicopter and jet engine noises. It is also argued that he
has severe post-traumatic stress disorder which is manifested
by sleeping difficulty, anxiety, headaches, concentration
difficulties and memory problems, and that his post-traumatic
stress disorder has become progressively worse. It is
maintained that he has right shoulder pain and skin rash.
Attention is invited to the provisions of 38 C.F.R. § 4.7.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), the Board of Veterans' Appeals (Board) has reviewed
and considered all of the evidence and material of record in
the veteran's claims file. Based on a review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that new and material
evidence has not been submitted to reopen the claim for
service connection for defective hearing and that the
preponderance of the evidence is against the claims for an
increased rating for PTSD in excess of 30 percent prior to
June 12, 1991, and for the service-connected skin disability.
The Board decides too that new and material evidence has been
submitted to reopen the claim for service connection for
tinnitus, and that the medical evidence supports the grant of
service connection for tinnitus, and that the evidence favors
a 70 percent rating for PTSD from June 12, 1991, and a 10
percent rating for the service-connected right shoulder
disability.
FINDINGS OF FACT
1. The veteran did not appeal the September 1985 rating
decision of the RO, denying service connection for hearing
loss and tinnitus, after he had received notification of the
adverse determinations and of his procedural and appellate
rights.
2. The additional evidence presented since the September
1985 rating decision is cumulative evidence as it supports a
point already established that the veteran does not have
impaired hearing for VA purposes.
3. The additional evidence presented since the September
1985 rating decision, pertaining to exposure to acoustic
trauma in service, is relevant to and probative of whether
tinnitus is related to service and raises a reasonable
possibility that when all the evidence is viewed, the outcome
of the claim might be different.
4. All the evidence establishes that tinnitus had onset in
service due to exposure to acoustic trauma.
5. Prior to June 12, 1991, the PTSD disability picture did
not equate to more than definite social and industrial
impairment.
6. PTSD currently produces severe impairment, an increase in
disability that was factually ascertainable on VA examination
dated June 12, 1991, but demonstrable inability to obtain or
retain employment is not shown.
7. The service-connected skin disability is manifested by
scaling and erythema over the upper chest and back region,
but exudation or constant itching of extensive lesions is not
objectively demonstrated.
8. The right shoulder disability is manifested by
intermittent pain with X-ray findings of slight widening of
acromioclavicular joint that more nearly approximate
malunion, considering functional loss due to pain.
CONCLUSIONS OF LAW
1. The rating decision of September 1985 by the RO, denying
service connection for bilateral hearing loss and tinnitus,
became a finally adjudicated claim. 38 C.F.R. §§ 3.104(a),
3.160(d) (1995).
2. New and material evidence has not been submitted to
reopen the claim for service connection for bilateral hearing
loss. 38 U.S.C.A. §5108 (West 1991).
3. New and material evidence has been submitted to reopen
the claim for service connection for tinnitus. 38 U.S.C.A.
§ 5108 (West 1991).
4. Tinnitus was incurred in wartime service. 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. §§ 3.102, 3.304(d) (1995).
5. The schedular criteria for a rating in excess of 30
percent for PTSD prior to June 12, 1991, had not been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1,
4.2, 4.7, Part 4, Code 9411 (1995).
6. A 70 percent schedular evaluation for post-traumatic
stress disorder from June 12, 1991, is warranted.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1,
4.2, 4.7, Part 4, Code 9411 (1995).
7. An increased rating for a skin disability is not
warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38
C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, Part 4, Code 7806
(1995).
8. A 10 rating for the right shoulder disability is
warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38
C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.31, 4.40, 4.41, Part
4, Code 5203 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran’s claims with respect to PTSD and disabilities of
the skin and right shoulder are well grounded. After review
of the evidentiary assertions, the Board finds that the facts
pertinent to the claims have been developed and there is no
further statutory duty to assist under § 5107(a).
I. New and Material Evidence
1. Defective Hearing.
Generally, to establish service connection for a disability,
the evidence must show that the disability was incurred in
service. 38 U.S.C.A. §§ 1110, 1131. When certain chronic
disorders, such as sensorineural hearing loss, become
manifest to a degree of 10 percent or more, they will be
presumed to have been incurred in service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Entitlement to service connection for hearing loss disability
is subject to the additional requirements of 38 C.F.R.
§ 3.385 (effective in 1990), providing, in pertinent part,
that hearing status shall not be considered service-connected
when the thresholds for frequencies of 500, 1000, 2000, 3000,
and 4000 Hertz are all less than 40 decibels and at least
three of these frequencies are 25 decibels or less; and
speech recognition scores are 94 percent or better. During
the pendency of this appeal VA published a final, amending 38
C.F.R. § 3.385 (1995). The United States Court of Veterans
Appeals (Court) and VA are required to apply a regulation
adopted during the pendency of a case when the new regulation
is more favorable to a claimant, unless the Secretary of VA
has specified to the contrary. See Karnas v. Derwinski,
1 Vet.App. 308, 313 (1991).
In Heuer v. Brown, 7 Vet.App. 379 (1995), the Court found
that the Secretary had not so specified and that the
application of the 1994 amended 38 C.F.R. § 3.385 would not
be more favorable to the veteran and thus the 1990 version of
§ 3.385 was applicable.
A rating decision of September 1985 denied service connection
for bilateral hearing loss on the basis that the veteran's
hearing was within normal limits at the service separation
examination in April 1985 and the Department of Veterans
Affairs (VA) examination in June 1985. In October 1985, the
veteran was informed of the denial and advised of his right
to appeal. Following a notification of the denial, the
veteran did not appeal that rating decision. As such, that
decision is final. 38 C.F.R. § 3.104(a).
When a decision on a claim is final, the veteran may reopen
such claim for service connection by the submission of new
and material evidence. 38 U.S.C.A. § 5108.
The evidence before the regional office (RO) at the time of
the September 1985 rating decision included the veteran's
service medical records, VA medical and clinical reports, and
the veteran’s statement. The service medical records for the
first period of service show no hearing impairment for VA
purposes. On separation examination in September 1969,
audiometric scores showed threshold levels of 10, 10, 10 and
10 decibels in each ear at 500, 1,000, 2,000 and 4,000 hertz,
respectively.
For the second period of service, on entrance examination,
audiometric scores showed threshold levels of 10, 5, 0, 5 and
0 decibels in the right ear and 5, 5, 0, 0 and 5 decibels in
the left at 500, 1,000, 2,000, 3,000 and 4,000 hertz,
respectively. On separation examination in April 1985,
audiometric scores showed threshold levels of 5, 0, 0, 5 and
0 decibels in the right ear and 10, 0, 10, 10 and 15 decibels
in the left at 500, 1,000, 2,000, 3,000 and 4,000 hertz,
respectively.
On VA examination in June 1985, the diagnoses included
deafness. However, VA audiological evaluation revealed
threshold levels of 10, 5, 5 and 5 decibels in the right ear
and 15, 5, 0 and 10 decibels in the left at 500, 1,000, 2,000
and 4,000 hertz, respectively. Speech discrimination ability
was 96 percent in the right ear and 100 percent correct in
the left. The audiologist commented that the veteran's
hearing was within normal limits, bilaterally.
The evidence of record since the September 1985 rating
decision consists of the following.
A March 1990 private medical report discloses a history of
hearing loss.
During a special VA neurological examination in June 1991,
the examiner reported that recent hearing tests showed 30
decibel loss in one ear in the 250 and 500 hertz range and 20
decibel loss in the other ear in the same hertz range.
In March 1992, the veteran testified that he was exposed to a
lot of noises from gunfire, mortars, artillery, air strikes
and small arms.
In September 1994, a private clinical audiologist reported
that he had reviewed the veteran's file and audiological
profile, and that, given a history of occupational exposure
and the current audiometric configuration of a high frequency
notch bilaterally at 3,000-6,000 hertz, the veteran’s noise
exposure is the primary cause of his hearing loss.
In a statement of September 1994, R. C. Findlay, Ph.D.,
reported that the veteran had a chronic history of noise
exposure during service, that the veteran was exposed for
significant periods to artillery fire, automatic weapon fire,
mortar fire, naval gunfire, and helicopter and jet engines,
and that the veteran currently worked as a bee keeper and had
not been exposed to significant vocational noise levels in
recent years. Dr. Findlay added that an otoscopic
examination of the veteran revealed normal ear canals and
tympanic membranes, that the veteran's hearing during
audiometric testing were reliable and inter test consistency
was high, that the audiometric testing of the veteran's
hearing was within normal limits, bilaterally, from 250 hertz
to 8,000 hertz, and that speech recognition scores were
normal. A copy of the audiogram report was enclosed.
In the present case, the additional evidence received since
the rating decision of September 1985 is new, but not
material. Evidence is material when it is relevant to and
probative of the issue at hand and when it is of sufficient
weight and significance that there is reasonable possibility
that new evidence, when viewed in the contents of all
evidence, both old and new, would change the outcome.
Fluker v. Brown, 5 Vet.App. 296 (1993).
The VA medical and clinical reports, dated after September
1985, provide no new insight into the veteran's hearing
condition during service or shortly thereafter. Furthermore,
not until a number of years after the September 1985 rating
decision is there any reference to hearing loss. Even though
the veteran asserts that he has bilateral hearing loss which
is related to service, there is no medical or clinical
evidence corroborating his assertions. In fact, his hearing
has been objectively shown to be currently within normal
limits.
In view of the foregoing, Board holds that new and material
evidence has not been submitted to reopen the veteran's claim
for service connection for bilateral hearing loss.
2. Tinnitus.
In a rating decision of September 1985, service connection
for tinnitus was denied on the basis that tinnitus was not
shown during service. In the following month, the veteran
was informed of the denial and advised of his right to
appeal. He did not appeal that decision.
The evidence then of record consisted of the service medical
records, which were negative for a finding of tinnitus. The
veteran’s service record showing decorations, medals and
badges included the Bronze Star Medal, Vietnam Service Medal,
Vietnam Campaign Medal, Ranger Tab, Aircraft Crewman Badge,
and Combat Infantryman Badge.
On VA examination in June 1985, it was noted that the veteran
had spent three years in the artillery. The veteran related
that his right ear rang constantly. The pertinent diagnosis
was continuous tinnitus.
The evidence received since the rating decision of September
1985 consists of the following.
At a special VA neurological examination in June 1991, the
veteran complained of tinnitus, especially in the right ear.
He mentioned that he had had the tinnitus ever since his
exposure to artillery fire in Vietnam where he had worked
firing mortars as part of a fire support platoon.
During a personal hearing in March 1992, the veteran
testified describing the acoustic trauma to which he was
exposed while in service. He stated that he had a noticeable
continuous ringing in the right ear, and that when he was in
a very quiet setting he could detect ringing in the left ear.
In a letter of September 1994, a private clinical audiologist
commented that, given the veteran's history of occupational
noise exposure, the tinnitus was as likely as not caused by
the excessive noise to which the veteran had been exposed,
and that, although the veteran’s tinnitus might be associated
with different pathology, the results of a comprehensive
audiological evaluation in September 1994 suggested that
noise exposure was the primary cause of the veteran's
associated tinnitus.
In a letter, dated in September 1994, R. C. Findlay, Ph.D.,
related that the veteran's high-pitched quality of tinnitus
and the date of its onset were consistent with the tinnitus
being noise related. He added that the veteran had a chronic
history of noise exposure during service, and that the
veteran had been aware of constant bilateral high-pitched
tinnitus since 1986.
The Board, therefore, concludes that this evidence is new and
material as it raises a reasonable possibility that when the
evidence is viewed in the context of old and new the
veteran's current tinnitus is related service. Since the
veteran's claim for service connection for tinnitus has been
reopened, the case should be decided on a de novo basis.
Manio v. Derwinski, 1 Vet.App. 140 (1991).
In reviewing the evidentiary picture in its entirety, the
Board finds that, even though the veteran’s service medical
records are silent with respect to tinnitus, he presented
satisfactory lay evidence sufficient to demonstrate that he
was exposed to acoustic trauma in service. His awards,
decorations and badges reflect his combat duties which are
consistent with his assertion that he was exposed to
significant periods of artillery fire of automatic weapons,
mortars and naval guns, and helicopter and jet engine noises.
Significantly, shortly after service, the veteran reported
having had ringing in the ear. The diagnoses, made within
two months after service, included continuous tinnitus. The
evidence also shows that he has not been exposed to acoustic
trauma after service. Moreover, the veteran presented
opinions by experts that the acoustic trauma to which he was
exposed in service led to the development of his current
tinnitus. There is nothing in the claims folder to indicate
otherwise. Hence, it is the judgment of the Board that
service connection for tinnitus is warranted.
II. Increased Ratings
1. PTSD
The veteran seeks a disability rating higher than that
currently in effect for his service-connected post-traumatic
stress disorder. That disorder is currently evaluated as
50 percent disabling under Diagnostic Code 9411 of the
Schedule for Rating Disabilities. Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (1995).
Under Diagnostic Code 9411, a 30 percent evaluation is
warranted for post-traumatic stress disorder when there is
definite impairment in the ability to establish or maintain
effective and wholesome relationships with people and when
psychoneurotic symptoms result in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite industrial impairment. A 50 percent
evaluation is warranted when the ability to establish or
maintain effective or favorable relationships with people is
considered impaired, and by reason of psychoneurotic symptoms
the reliability, flexibility and efficiency levels are so
reduced as to result in considerable industrial impairment.
A 70 percent disability rating is warranted when the ability
to establish or maintain effective or favorable relationships
with people is severely impaired and the psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. A 100 percent disability rating requires that
attitudes of all contacts except the most intimate be so
adversely affected as to result in virtual isolation in the
community and there be totally incapacitating psychoneurotic
symptoms bordering on gross repudiation of reality with
disturbed thought or behavioral processes associated with
almost all daily activities such as fantasy, confusion, panic
and explosions of aggressive energy resulting in profound
retreat from mature behavior. The individual must be
demonstrably unable to obtain or retain employment.
The United States Court of Veterans Appeals, in Hood v.
Brown, 4 Vet.App. 301 (1993), concluded that the term
“definite” was qualitative in character. In an opinion,
dated in November 1993, the VA General Counsel held that
“definite” should be construed as “distinct, unambiguous and
moderately large in degree.” O.G.C. Prec. 9-93 (Nov. 9,
1993).
In evaluating the severity of a disability, the Board must
look to the entire record. 38 C.F.R. §§ 4.1, 4.2.
On May 23, 1989, the veteran’s claim of service connection
for PTSD was received.
On a special VA psychiatric examination in July 1989, the
veteran related that his social isolation was a concern to
him. He also reported having trouble with anger,
concentration, guilt and sleeping. It was noted that the
veteran had been a full-time worker at a prison, that he
spent a lot of time outside of his normal working hours
tending beehives and raising Christmas trees, and that he
never had had any kind of psychiatric treatment or counseling
until March of the current year.
During the examination, the veteran was cooperative but he
appeared detached. He described his mood as usually solemn.
His affect was euthymic. He also stated that sometimes he
felt depressed for a few days at a time. The veteran was
alert and oriented to person, place and time. There was no
evidence of delusional thinking, hallucinations or thought
disorder. Psychological insight seemed fair, and his
judgment appeared good. The examiner reported that the
veteran had problems talking about the war and generally
avoided situations that would remind him of it, that the
veteran felt detached and estranged from others, and that the
veteran had problems with anger and sleeping difficulty. He
reported some hypervigilance and survivor guilt feelings.
There was no diagnosis of PTSD.
In a VA social and industrial report of July 1989, it was
noted that the veteran worked during the previous three years
as a prison officer on a full-time basis, that he also worked
as a bee keeper, a bush picker and a fur trapper, that he
married his wife in 1981 and that they had no children. The
veteran claimed that he slept during the day because he
worked at nights, that he had few nightmares of combat
experience in Vietnam, and that he isolated himself from
others, preferring to spend the majority of his time alone
out in the woods. Additionally, it was reported that the
veteran was not easily irritated but when he became irritated
and angry he was explosive, that he continued to carry a
great deal of anger for being betrayed by his country when he
returned home from his first tour in Vietnam, and that he
tended to exhibit a moderate amount of hypervigilant behavior
but not elevated to startle response.
On file a private medical report of March 1990, showing that
the veteran related that he was depressed, anxious and
irritable, and had concentration difficulty, and that he also
experienced anger and frustration.
In a statement of May 1990, the veteran gave a detailed
medical history as it related to his service. He stated that
he currently lived on the fringe of society without having
close friends and did not socialize, and that he worked at
night to accommodate his sleeplessness.
Of record is a copy of a letter, dated in March 1991, from
the Family Counseling Center, disclosing that the veteran had
been in counseling for two years because of PTSD.
In April 1991, the veteran with his wife and his
representative appeared at a hearing on appeal conducted in
the RO. His wife testified that he was restless and
experienced sleeping trouble. The veteran mentioned that he
frequently thought and had dreams of his Vietnam experiences.
The veteran had a special VA psychiatric examination
conducted on June 12, 1991. On that occasion, he reported
that he had daily intrusive thoughts about Vietnam, severe
interruptions of his sleep, and nightmares about combat
situation, and that he experienced sleeping difficulty which
affected his job. He reportedly had significant impairment
with his relationship with others and kept significant
distance from people. The veteran related that he isolated
himself not only from people in general in his life but also
from members of his family, that he had startle reaction to
loud noise, and was hyperalert and hypervigilant, always on
guard and looking for dangerous situation, and that he was
particularly bothered about guilt for his country leaving
Vietnam. He added that, when he watched movies about
Vietnam, he found them to be quite upsetting.
During the psychiatric examination, it was noted that the
veteran lived with his wife but his marriage was quite
strained because of emotional distance and explosive
arguments, that he continued to work as a guard at a
correction center, but had recently been off for a week and a
half as a result of a recommendation by his counselor who had
an opinion that the veteran was under severe emotion strain
because of post-traumatic stress disorder The veteran said
that, in his spare time, he collected ferns and other
vegetation for sale, and that he worked previously as a fur
trapper but had not done that for several years.
On examination, the veteran appeared rather tense and
nervous. He had considerable difficulty in putting his
thoughts and feelings into words. He related in a very
detached, distant manner, and tended to react very
defensively. When he became defensive, he became more
inarticulate and had great difficulty in putting his thoughts
into words. The veteran showed no tearing when talking about
his traumatic experiences, but appeared to become more
agitated and upset when talking about disturbing events that
occurred in Vietnam. The examiner had the impression that
the veteran had daily intrusive thoughts about Vietnam and
frequent nightmares about traumatic military experiences,
that the veteran also had significant numbing of his
emotional responsiveness and startle reaction to loud noises,
and was markedly hyperalert and hypervigilant, and that the
veteran attempted to avoid stimulating thoughts and memories
about Vietnam and found it difficult to talk about those
experiences.
The examiner further believed that the veteran suffered very
severely from post-traumatic stress disorder. The diagnosis
was post-traumatic stress disorder, chronic type, severe in
nature. The examiner expressed the opinion that the highest
level of adaptive functioning during the previous year had
been fair to poor insofar as the veteran had problems in
functioning satisfactorily as a guard in a State prison,
which constantly reexposed him to traumatic events and
stimulated a situation of constant danger, much as
experienced in Vietnam, and that the veteran had significant
difficulty with his interpersonal relationship with his wife
from whom he appeared to be very emotionally detached and
distant.
In July 1991, the veteran requested leave without pay from
his job as a correctional officer in part because of PTSD.
In a November 1991 rating decision, the RO, in part
effectuating a Hearing Officer’s decision, granted service
connection for PTSD and assigned a 30 percent rating,
effective May 23, 1989, the date of receipt of claim. The
veteran then appealed the 30 percent rating.
In March 1992, the veteran appeared with his counselor and
his representative at a hearing on appeal conducted in the
RO. On that occasion, the veteran testified that he had
increased thoughts about Vietnam, that he had disturbing
dreams, and that he had tension and anxiety, associated with
headaches. He added that he was always very isolated, and
that he was receiving psychiatric therapy. The veteran’s
counselor testified that he had been treating the veteran for
4 years, that the veteran was always very isolated, and that
the veteran’s psychiatric condition was “pretty bad” and had
become worse.
In a statement, dated in July 1994, from a Family Counseling
Center, it was noted that the veteran had classic symptoms of
chronic severe post-traumatic stress disorder that his method
of coping with his psychiatric condition was to isolate and
alienate himself from those he cared about most. It was
mentioned that the veteran also coped with these feelings by
repression, the result of which was emotional numbness, that
emotional numbness caused a lack of intimacy in his
relationship with his wife, and the inability to set
meaningful and lasting goals and the commitment and
motivation to carry them out, and that, because of his lack
of trust, he did not have a social life and actually spent
most of his time alone.
In a VA social and industrial survey of January 1995, it was
reported that he currently lived with his wife in a log cabin
since 1985, that his marriage was troubled with communication
problems, and that he had difficulty with anger and getting
along during family gatherings. It was further related that
he was a correctional officer, that he worked part time as a
beekeeper and a plant and nurseryman, and that he left his
job as a correctional officer after being named officer of
the year in 1989 because of physical problems and PTSD. The
veteran reported that he was generally able to get along with
his workers and supervisors.
The social and industrial survey discloses that the veteran
reexperienced his war trauma during previous and current
recurrent intrusive recollections, dreams and nightmares, and
was distressed when exposed to reminders of the service
trauma. He reported that he had never had a dissociative
episode. He added that he currently had difficulties with
sleep, anger, concentration, hypervigilance and exaggerated
startle response. During the interview, the veteran was
noted to scan the room in a hypervigilant manner. The
veteran acknowledged his previous and current amnesia for
specific traumatic events, marked diminished interests in
activities, detachment and estrangement from others, and
restricted range of affect. He had a sense of survival
guilt. The greatest impact from the war he said was his not
wanting to be around people. The veteran added that that
feeling affected his family relationship, and that he could
not trust people, had anger, and was down in the dumps at
times.
At a special VA psychiatric examination in January 1995, the
veteran reported that he experienced frequent sleep
disturbances, had significant avoidance of remembering
Vietnam experiences, made significant efforts to avoid
people, and felt that he could not trust them and did not
feel safe around them. He stated that he was hypervigilant
and described his trouble with managing his anger and
feelings. The veteran was concerned that he would lose
control of his temper and hurt someone. He admitted to
startle reaction, though he reacted in a controlled way. He
denied any current suicidal ideation, but admitted to having
occasional dreams of Vietnam. The veteran added that he
covered up his emotion. He described a sense of having
vulnerability and weakness.
The January 1995 examination showed that the veteran was
alert and oriented times three. He appeared to be an honest
historian although he was somewhat reserved and had
restricted affect. His mood was dysthymic. No acute
suicidal or homicidal ideation or intent was found. There
was no evidence of psychotic thought process. Memory and
concentration were grossly intact. Insight and judgment were
adequate. The diagnosis was post-traumatic stress disorder,
chronic with secondary dysthymia. The examiner expressed the
opinion that, for the first 10 years after Vietnam, the
veteran had a dysfunctional and wandering lifestyle and
experienced significant emotional trauma in sense of
alienation, and that the veteran had developed a lifestyle of
isolation and avoidance, and had significant emotional
numbing all of which would be significant factors in
affecting his ability to work around people in a conventional
manner. The examiner added that the veteran's post-traumatic
stress disorder symptoms had had significant impact upon his
lifestyle and career path, and continued to severely limit
his ability to be around others and to work around others in
a consistent manner.
In an April 1995 rating decision, the RO increased the rating
for PTSD to 50 percent, effective from November 13, 1993.
The veteran then continued the appeal of that rating.
In reviewing the medical evidence the Board finds that the
veteran has had severe psychiatric symptoms including
nightmares, sleeping trouble, guilty feelings, daily
intrusive thoughts about Vietnam, startle reactions,
tenseness, nervousness, anxiety, and numbing of emotional
responsiveness. The veteran also has exhibited marked
diminished interest in activities, detachment, estrangement
from others, and restricted affect. He is markedly
hyperalert and hypervigilant, and avoids stimulating thoughts
and memories about Vietnam. In fact, the examiner in June
1991 expressed the opinion that the veteran suffered very
severely from post-traumatic stress disorder. The severe
impairment is substantiated by examiners’ conclusions as well
as clinical data.
The medical evidence also shows that the veteran is well
oriented and in contact with reality. His memory is grossly
intact. His insight and judgment are adequate. He does not
present totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes. There is no clinical
showing of fantasy, confusion, panic and explosions of
aggressive energy resulting in profound retreat from mature
behavior. As presented by the evidentiary picture, the
veteran’s psychiatric symptoms, in the Board’s opinion, cause
not more than severe social and industrial inadaptability,
and no medical opinion indicates total incapacity due to the
service-connected post-traumatic stress disorder such that a
100 schedular disability rating is in order. Accordingly,
the Board concludes that a 70 percent schedular evaluation is
warranted for post-traumatic stress disorder from June 12,
1991, the date that it was factually ascertainable that an
increase in disability had occurred. 38 C.F.R.
§ 3.400(o)(2). This is also contemporaneous with the
veteran’s July 1991 request for leave without pay from his
job as a correctional officer in part because of PTSD.
Prior to June 12, 1991, there was no clear diagnosis of PTSD
and the veteran was apparently coping with his job as a
correctional officer, as he had been named officer of the
year in 1989. Also, there is little clinical data to support
a finding of considerable impairment by reason of
psychoneurotic symptoms affecting reliability, flexibility
and efficiency levels. For these reasons, a rating in excess
of 30 percent, prior to June 12, 1991, is not warranted.
Consideration has been given to the potential application of
various provisions of 38 C.F.R. Part 3 and 4, whether or not
they were raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). In particular, the Board
finds that the evidence since May 1989 does not suggest that
the veteran's post-traumatic stress disorder presents an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards as to warrant the assignment of an extraschedular
evaluation under 38 C.F.R. § 3.321(b)(1) (1995). For
example, the psychiatric disability does not require frequent
periods of hospitalization or markedly interfere with his
employment beyond that which has been contemplated by the 70
percent schedular evaluation.
2. Disability of the Skin
The veteran seeks a rating higher than the 10 percent
currently in effect for his service-connected skin
disability. Under Diagnostic Code 7806 of the Schedule for
Rating Disabilities, a 10 percent evaluation is warranted for
eczema with exfoliation, exudation or itching and involvement
of an exposed surface or extensive area. A 30 percent
evaluation requires constant exudation or itching, extensive
lesions, or marked disfigurement.
When the severity of a disability is being evaluated, the
entire record in the claims folder will be reviewed.
38 C.F.R. §§ 4.1, 4.2. The service medical records reveal
that in April 1984 he complained of rash, the pertinent
impression was seborrheic dermatitis.
The veteran was accorded a VA compensation examination in
October 1990. Examination of the skin showed two pigmented
nevi on the right lower abdomen and left mid-abdomen. There
was a 3- by 5-centimeter area of tinea versicolor in the left
anterior chest area and some scattered follicular lesions and
eczematous-type changes, mild, in the sternal region. The
assessments included skin rash comprised of tinea versicolor
in the left and upper chest area and some scattered
folliculitis and contact dermatitis or eczematous-type
changes in the sternal region.
At the personal hearing in April 1991, the veteran and his
wife presented testimony. His wife stated that the veteran
had a flaky condition on his skin, that if he did not wash
his scalp daily there would be noticeable flakes and a kind
of reddened ring around his face. She added that there would
be large amounts of crusty stuff over the ears and back of
the head.
In June 1991, the veteran had a special VA dermatologic
examination. Examination revealed scaling, erythematous
papules, plaques in the scalp, nasolabial folds, eyebrows,
face and anterior chest. There was also fine branny scale on
hyperpigmented patches on the anterior chest and shoulders.
The assessments included seborrheic dermatitis.
On VA examination in December 1994, there was scaling and
erythema over the upper chest and back region without
pustules or vesicles. The assessment was dermatitis.
On last examination, the veteran had skin changes on the
upper torso. His wife’s testimony reflects that he has a
noticeable skin condition on his head, and that there are
large amounts of crust over the ears and back of the head.
There is, however, no clinical showing of constant exudation
or itching, extensive lesions, or marked disfigurement.
Hence, the Board is of the opinion that the schedular
criteria for the next higher rating for the service-connected
skin disorder have not been met. Additionally, the
disability picture presented by the skin disorder is not
unusual or exceptional. There is no evidence disclosing that
the disability causes frequent periods of hospitalization or
marked interference with employment to warrant the
application of an extraschedular rating.
3. Right Shoulder Disability
The veteran seeks a compensable evaluation for his service-
connected right shoulder disability that is evaluated under
Diagnostic Code 5203. Under Diagnostic Code 5203, malunion
of the clavicle or scapula, or nonunion without loose
movement, warrants a 10 percent evaluation. Where the
minimum schedular evaluation requires residuals and the
schedule does not provide a noncompensable evaluation, a
noncompensable evaluation will be assigned when the required
residuals are not shown. 38 C.F.R. § 4.31 (1995).
The medical history of the veteran is important in the
evaluation of the severity of a disability.
38 C.F.R. §§ 4.1, 4.2, 4.41.
The service medical records disclose that veteran suffered
acromioclavicular separation of the right shoulder.
During a VA compensation examination in June 1986, it was
noted that the veteran sustained an injury at the
acromioclavicular joint during hand-to-hand combat practice,
that he used weights since then to maintain strength in the
right shoulder and had done generally well, but that he felt
the shoulder occasionally popped out and gave him pain. He
said that he was able to carry out his function as a
beekeeper and brush clearer even though he still had shoulder
discomfort with exertion. Examination showed a normal right
shoulder but with slightly increased acromioclavicular joint
space on the right. There was no tenderness. Full range of
motion without pain or palpable abnormality was found.
At a special VA orthopedic examination in July 1989, the
veteran described a dull-aching pain in the right shoulder
that became worse with heavy lifting. He stated that he
experienced some tightness of the muscles about the shoulder
that radiated into the neck. Examination revealed level
shoulders with very slight asymmetry of the distal end of the
right clavicle. The distal end of the right clavicle was
slightly more prominent in a cephalad direction than the
left. On palpation, there was no definite tenderness of the
distal end of the clavicle. Range of motion of both
shoulders was flexion from 0 to 180 degrees, abduction from
0 to 180 degrees, external rotation from 0 to 90 degrees, and
internal rotation from 0 to 70 degrees. The circumference
measurements of the upper extremities revealed that the right
dominant arm was 31.5 centimeters and the left arm was
30.5 centimeters. There was good muscle strength about the
upper extremities without evidence of weakness. Sensory
examination about the upper extremities revealed no areas of
hypesthesia and no impingement sigh of the right shoulder.
The impressions included sprain, acromioclavicular joint, on
the right, Grade II, healed.
The veteran had a VA compensation examination in October
1990. On that occasion, he complained of shoulder pain. He
related that he had sustained a dislocation of the right
shoulder in hand-to-hand training in 1984, that it healed
uneventfully and he had had no recurrent dislocations, and
that his problems included progressive aching and
fatigability in the joint. The veteran said that he had to
be careful with lifting anything over 20 pounds or working
with his arms over the head or he would exacerbate the
shoulder pain. He reported taking Motrin periodically for
the shoulder pain. He added that he had no problems with
swelling, redness or other acute changes in the joint.
The October 1990 VA examination of the veteran’s right
shoulder revealed full range of motion. Mild crepitus was
present. Good strength in musculature was noted. There was
no evidence of tenderness, redness or other acute changes in
the joint. The assessments included status post right
shoulder dislocation in 1984 with progressive problems with
post exertional pain in the joint that was suggestive of mild
degenerative joint process. The examiner commented that the
post-traumatic condition was well managed conservatively with
some crepitus currently but will full range of motion and
good strength. The X-ray study of the right shoulder showed
normal glenohumeral relationship with good range of rotary
motion. There were periarticular soft tissue calcifications
with unusual configuration of the inferior distal right
clavicle that appeared to have a corticated bony spur with a
separate or fractured tip in relation to the coracoclavicular
ligament. There was modest widening of the acromioclavicular
joints that suggested an old subluxation. The alignment of
the acromion and the clavicle was normal. The radiologist’s
impression was old acromioclavicular joint subluxation with
negative examination of the right shoulder.
In April 1991, the veteran together with his wife and his
representative appeared at a personal hearing in the RO. His
spouse testified that the right shoulder was slightly raised,
and that he received treatment from a chiropractor.
At a special VA orthopedic examination in June 1991, the
veteran complained of pain in the right shoulder. He noted a
lump in the right acromioclavicular joint area. The veteran
stated that he had intermittent right shoulder pain which he
described as dull-aching pain. There was also tightness in
the right trapezius area. Examination showed a slightly
asymmetrical upper back with respect to the right shoulder.
The right shoulder was approximately .5 centimeters higher
than the left. There was no visible or palpable muscle
spasm. Superficial palpation produced no tenderness about
the upper back. To deeper palpation, there was some
tenderness about the right acromioclavicular joint. A slight
prominence about the right acromioclavicular joint. Some
tenderness was elicited about that area. There was full
range of motion of the shoulders. The impressions included
sprained right acromioclavicular joint, Grade III, old. An
X-ray study showed that there was slight widening of the
right acromioclavicular joint with corticated ossicle in the
distribution of the coracoclavicular ligament. There was no
subluxation with or without weight bearing. The
radiologist’s impressions were slight widening of the right
acromioclavicular joint and ossification in the
coracoclavicular ligament consistent with remote injury
without evidence of subluxation or interval change.
A transcript of a personal hearing held at the RO in March
1992 reflected that the veteran had chiropractic treatment of
the right shoulder about four years before.
In a letter of July 1994, S. B. Webster, M.Ed., related that
the veteran had chronic pain of the right shoulder.
The veteran had a VA general medical examination in January
1995. On that occasion, he gave a history of his right
acromioclavicular injury. Examination revealed no atrophy or
fasciculations in any muscle groups. Deep tendon reflexes
were one plus and symmetrical at the pectoralis and the
trapezius. Strength was 5/5 in all tested muscle groups,
including the shoulders, without atrophy. He had normal
shoulder extension and shoulder flexion. The veteran had no
abnormalities noted in the area of the pectoralis muscles.
On further VA examination in January 1995, it was reported
that the veteran’s shoulder motions were not particularly
restricted. He did not describe significant pain in the
shoulders. The veteran stated that he experienced some very
occasional paresthesia’s in the right upper extremity that
were extremely minimal. Examination showed some prominence
of the right acromioclavicular joint that was very minimal.
The shoulders were symmetrical. Axial loading at the vertex
produced no increased pain. To deep palpation, the veteran
had tenderness along the spinal processes and the right
paracervical musculature. There was no tenderness about the
trapezius or the right acromioclavicular joint. The
impressions included sprain injury to the right shoulder by
history.
The Board initially observes that the veteran sustained an
injury at the acromioclavicular joint during service. He
complains of intermittent right shoulder pain, described as
dull-aching pain. There was, however, no tenderness about
the trapezius or the joint. Deep tendon reflexes were one
plus and symmetrical. Strength was 5/5. No muscle atrophy
or spasm was found. Radiographic findings reflected slight
widening of the right acromioclavicular joint with corticated
ossicle in the distribution of the coracoclavicular ligament.
After reviewing all the evidence, the Board concludes that a
10 percent schedular rating is warranted on the basis of
radiographic findings of slight widening of the right
acromioclavicular, suggesting malunion of the joint, along
with pain resulting in functional loss as it relates to
excess fatigability, applying 38 C.F.R. § 4.7 (more nearly
approximates the criteria for the next higher rating) and 38
C.F.R. §§ 4.40 (functional loss) and 4.45 (the joints).
ORDER
The application to reopen the claim of service connection
for bilateral hearing loss on the basis of new and material
evidence is denied.
Service connection for tinnitus is granted.
A rating in excess of 30 percent for PTSD prior to June 12,
1991, is denied.
A 70 percent schedular rating for PTSD from June 12, 1991, is
granted, subject to the law and regulations governing the
award of monetary benefits.
An increased rating for seborrhea dermatitis is denied.
A 10 percent rating for residuals of right shoulder
dislocation is granted, subject to the law and regulations
governing the award of monetary benefits.
REMAND
The veteran seeks service connection for a disability of the
thoracic spine. The service medical records disclose that in
February 1984 he complained of tingling sensation running
from the chest down the left arm. He said that he had had
the condition for approximately a year. The impression was
rule out thoracic outlet syndrome. Currently, the nature of
the thoracic spine disorder is unclear. The veteran had a VA
examination in June 1985. The impressions included possible
thoracic outlet syndrome on the left. In a March 1990
letter, there was reference to an evaluation at the a Seattle
VA Hospital where thoracic outlet syndrome was diagnosed. A
radiographic study in October 1990 revealed a mild
dorsokyphosis with some mild degenerative spurring and
anterior wedging in the mid and lower dorsal spine.
On a VA examination in June 1991, the neurologist commented
that a magnetic resonance imaging (MRI) of the upper thoracic
spine would be helpful or possibly a CT scan of the upper
thoracic spine. It was stated that a radiologist had
informed him previously that an MRI would be the preferred
study.
The veteran also seeks an increased rating for his service-
connected degenerative disc disease of the cervical spine
with bilateral neuropathy of the upper extremities. At a VA
neurological examination in October 1990, the examiner
remarked that the veteran’s numbness had previously been
attributed to carpal tunnel syndrome, but an electromyogram
in 1988 failed to show evidence of that disorder, that at
that time there was evidence of an old cervical
radiculopathy, but that the electromyogram was limited to
ruling out carpal tunnel syndrome. The neurologist
recommended further evaluation for the possibility of the
presence of cervical radiculopathy. A rating action of
January 1991, combined bilateral carpal tunnel with the
residuals of a cervical injury syndrome, and reclassified the
disability as residuals of cervical injury with degenerative
disc disease and bilateral hand neuropathy.
A private medical report of April 1990 shows an impression of
cervical radiculopathy. A nerve conduction velocity testing
of the median and ulna nerves in March 1992 was within normal
limits. At a VA orthopedic examination in January 1995, the
examiner commented that the veteran had some symptoms
suggestive of a left carpal tunnel syndrome, and cervical
spondylosis. A radiographic study in January 1995 revealed
degenerative disc disease of C6-7, and degenerative joint
disease at the facets of C5-6, C6-7 and C7-T1. Neuropathy
could be viewed as a separate and distinct disability entity,
while cervical radiculopathy is related to degenerative disc
disease of the cervical spine. A review of the medical
evidence indicates that the nature and etiology of the
veteran’s disability of the upper extremities need to be
clarified.
At a VA stomach examination of the veteran in December 1994,
it was noted that further gastrointestinal service
consultation should be requested. No gastrointestinal series
has been conducted since 1979.
As for unemployability, the veteran applied for VA vocational
rehabilitation in August 1994. There is record of the status
of that application.
In view of the foregoing, the Board remands these matters to
the RO for the following action:
1. Schedule the veteran for special
orthopedic and neurological examinations
to determine the nature and etiology of
any thoracic spine disability,
particularly thoracic outlet syndrome, as
well as the severity of cervical disc
disease with neuropathy of the upper
extremities. All indicated studies,
including electrodiagnostic testing,
should be performed. The neurologist is
asked to express an opinion as to whether
the neuropathy of the upper extremities
is related to degenerative disc disease
of the cervical spine or some other
identifiable pathology. The claims
folder should be made available to, and
reviewed by, the examiners prior to the
requested examinations.
2. The RO should also schedule the
veteran for a special gastrointestinal
examination to determine the severity of
the veteran's service-connected duodenal
ulcer disease. All indicated studies,
including a gastrointestinal series,
should be conducted.
3. Obtain copies of VA hospital and
outpatient records from the Seattle VA
Medical Center, particularly, the
evaluation for thoracic outlet syndrome
in 1990.
4. Obtain copies of the VA vocational
rehabilitation folder, including any
“reasonably feasible” determination,
pertaining to the veteran’s August 1994
application.
5. After completion of the above, the RO
should ensure that the remand
instructions have been complied with,
before adjudicating the claims.
If any benefit sought remains denied, the veteran and his
representative should be furnished a supplemental statement
of the case and they should be afforded a reasonable
opportunity to respond. Thereafter, the case should be
returned to the Board for further appellate consideration.
GEORGE E. GUIDO, JR.
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing and
the copy of this decision that you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals. Appellate rights do not attach to those
issues addressed in the remand portion of the Board's
decision, because a remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1995).
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